A rule that takes effect in May looks at who's behind amicus
curiae briefs.

"Friend of the court," or amicus curiae, briefs by
associations are becoming more common. Amicus briefs offer a no-risk
vehicle for presenting an association's views before a court when
the court is deciding a precedent-setting issue. Amicus briefs filed by
associations are most appropriate at the federal or state appellate
court or supreme court levels; these briefs are sometimes accepted by
lower courts in special circumstances. Recently the U.S. Supreme Court
addressed an issue that affects associations when filing amicus briefs
in that court - disclosure of who is paying for or drafting the brief.
In this article, Kevin Landy explains the significance of the rule.

- Jerald A. Jacobs, ASAE General Counsel

The U.S. Supreme Court recently issued a rule, effective May 1, 1997,
that requires amici curiae to disclose whether an amicus brief is
authored "in whole or in part" by counsel for a party. The
rule also requires identification of "every person or entity, other
than the amicus curiae, its members, or its counsel, who made a monetary
contribution to the preparation or submission of the brief." The
disclosure requirement does not apply to amicus briefs submitted on
behalf of federal, state, or local governments.

A more expansive rule on amicus briefs, vaguely requiring disclosures
of "any contribution, in money or services" and not clearly
excepting members of an organization, was first proposed by the
court's rule committee in March 1996. At that time, Jenner &
Block and others submitted written comments on behalf of associations
pointing out the proposed rule's ambiguity and excessive breadth.
The narrower language of the final rule represents a significant
improvement, although some issues are still open to interpretation.

Questions to resolve. It appears, for example, that the rule would
permit a litigating party who is also a member of an association
participating as amicus curiae to entirely fund the amicus brief without
disclosing the party's contribution. However, this apparent
exception may not have been intended by the court. The rule also raises
questions about who are "members" of associations when those
associations are submitting amicus briefs to the court.

In addition, the new Supreme Court rule fails to define when counsel
for a party is considered to have "authored the brief in whole or
in part." A sensible interpretation would allow counsel for a party
to make editing suggestions without triggering the disclosure
requirement, although it is hard to know at what point substantial
editing and rewriting might be deemed "partial authorship."

The rule's reference to "counsel for a party"
presumably means an attorney representing a party in the particular
proceeding before the Supreme Court, although the rule could also be
interpreted more expansively to sweep in attorneys who are representing
that party in other matters.

As associations continue to file amicus curiae briefs before the U.S.
Supreme Court with greater frequency, answers to these questions grow in
importance. Clarification of the rule will be reported by ASAE as it
becomes available.

Kevin J. Landy is an attorney and Jerald A. Jacobs is a partner with
Jenner & Block, in Washington, D.C. Jacobs edits this column.

COPYRIGHT 1997 American Society of Association Executives
No portion of this article can be reproduced without the express written permission from the copyright holder.